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Asian Journal of Comparative Law, 11 (2016), pp. 87–109doi:10.1017/asjcl.2016.5© National University of Singapore, 2016First published online 25 May 2016

Horizontal Discrimination and Article15(2) of the Indian Constitution:A Transformative Approach

Gautam BHATIA*West Bengal National University of Juridical Sciences, [email protected]

AbstractThis article explores horizontal non-discrimination rights under the Constitution of India(Indian Constitution). The Indian Constitution is unique in that it expressly prohibitsprivate discrimination on the grounds of sex, race, caste, religion, etc. for the purpose of,inter alia, “access to … shops” (Article 15(2)). The article argues that a historicallygrounded understanding of the word “shops”, in the context of the transformativepurposes of the Indian Constitution, necessitates a broad reading that covers all privateeconomic transactions where goods and services are offered to the public at large.Furthermore, seemingly contrary Supreme Court precedent, if it is constitutionallyjustifiable, must be restricted to its own facts. In sum, Article 15(2) of the IndianConstitution provides a radical constitutional remedy that is directly horizontallyapplicable to private conduct, and goes far beyond remedies developed in otherjurisdictions, which have often needed to turn to legislation in order to adequatelycombat private discrimination in the economic and social sphere.

In early 2014, it was reported that the Indian government was considering setting up an“Equal Opportunities Commission” (EOC).1 This move was based upon theSachar Committee Report of 2006, which had found that the Indian Muslimcommunity was significantly disadvantaged along a host of parameters, includingaccess to social and physical infrastructure, standards of living, and literacy. Accordingto the Report, the task of the EOC, like its counterparts in the United States and

* BCL, MPhil (University of Oxford), LLM (Yale Law School). Visiting Faculty, West Bengal NationalUniversity of Juridical Sciences, Kolkata, India. I thank Tarunabh Khaitan, Jawahar Raja, KrishnaprasadKV, V Niranjan, Christopher McConnachie, Malavika Prasad, and Shreya Atrey, for helpful discussionson various aspects of this article. I am also grateful to the organizers and participants at theDiscrimination Workshop at the National Law School of India University in December 2014, and theorganizers and participants of the Public Law Conference at the National Law University, Delhi in April2015, where earlier drafts of this paper were presented and discussed. Lastly, thanks are due to twoanonymous peer reviewers, whose acute comments greatly helped in sharpening the arguments of thisarticle.

1. Press Trust of India, “Govt to Set Up Equal Opportunities Commission for Minorities” The Times ofIndia (20 February 2014) and The Hindu (20 February 2014); Express News Service, “Cabinet ClearsEqual Opportunities Panel” The Indian Express (21 February 2014).

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European countries,2 would be – inter alia – to check discrimination against minoritycommunities in employment, housing, accommodation, and so on.3

After the 2014 election, plans for an EOC appear to have been shelved for theforeseeable future. In this article, I will propose a constitutional solution to the problemthat necessitates the existence of an EOC. This is the problem of horizontaldiscrimination, i.e., discrimination suffered by private entities at the hands of otherprivate entities (individuals or corporations), on the basis of constitutionallyproscribed markers: sex, race, caste, religion, place of birth, etc. I will argue that incontrast to countries like the United States, where horizontal discrimination hadto be tackled by federal government legislation,4 the Constitution of India (IndianConstitution or Constitution) contains a unique set of tools to address this issue.

Horizontal discrimination can take a variety of forms: restrictive covenants, denialof access to public spaces, exclusion from economic transactions, and so on. Thesedisparate ways of discrimination all involve, in some manner, a clash between theassociative rights of private individuals (including their right not to associate withothers, and to exclude others from associating with them)5 on the one hand, and therights of individuals and groups against non-discrimination and to full participation inthe economic and social life of the community on the other.6 In this article I shallexamine horizontal discrimination through the lens of one particularly invidiousavatar: housing discrimination on the basis of religion. This is partly because housingdiscrimination has become a pervasive feature of the Indian social landscape in recenttimes;7 but more importantly, because the Indian Supreme Court’s engagement withhorizontal discrimination arose in the context of a housing case, and provides us with apoint of departure fromwhich to analyse the constitutional questions at issue, and howthe Court dealt with them.

At first blush, housing discrimination appears to be a straightforward violation ofArticle 14 of the Indian Constitution,8 which guarantees the equal protection of laws,and Article 15(1),9 which guarantees non-discrimination on the basis of, inter alia,caste and religion. Of course, matters are complicated by the fact that mosthousing societies are private, while the equality and non-discrimination guaranteesof Articles 14 and 15(1) are addressed to the State. This is not a problem unique to

2. E.g., the United States Equal Employment Opportunity Commission and United Kingdom Equality andHuman Rights Commission.

3. Prime Minister’s High Level Committee, Social, Educational and Economic Status of the MuslimCommunity of India: A Report (New Delhi: Ministry of Human Resource Development, 2006), online:Ministry of Human Resource Development <http://mhrd.gov.in/sites/upload_files/mhrd/files/sachar_comm.pdf>.

4. Fair Housing Act, 42 USC ss 3601 – 3619 (1968) (United States).5. For example, Article 19(1)(c) of the Constitution of India expressly guarantees the freedom of

association.6. Erwin CHEMERINSKY, “Rethinking State Action” (1985) 80(3) Northwestern University Law Review

503 at 536.7. Smruti KOPPIKAR, “How Bias Against Muslim Flat Seekers Came to Be Entrenched in India’s Most

Cosmopolitan City” Scroll (28 May 2015), online: Scroll <http://scroll.in/article/730409/how-bias-against-muslim-flat-seekers-came-to-be-entrenched-in-indias-most-cosmopolitan-city>.

8. Constitution of India 1949, art 14.9. Ibid, art 15(1).

88 as i an journal of comparat i v e law


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India, since constitutional rights in modern democracies are primarily (although by nomeans exclusively) enforceable against the State.

Is there a remedy? In the first part of this article, I examine various possible solutionsto the problem, by looking to the decisions of other constitutional courts (I). I thenexamine the greatest obstacle that lies in the way of similar legal developments inIndia – the 2005 Supreme Court decision in Zoroastrian Cooperative – and argue thatits reach must be narrowly limited to its specific factual matrix (II). I go on to analysethe Supreme Court’s landmark 2011 decision in IMA v Union of India, and argue thatcontra Zoroastrian Cooperative, it lays the groundwork for a constitutional,horizontally applicable civil rights jurisprudence, grounded in an expansive readingof Article 15(2) of the Constitution, which goes beyond the solutions advanced in otherjurisdictions (III). I end by discussing how this interpretation, a seeming departure fromthe principles of classic political and constitutional liberalism, is philosophically andhistorically justified, given the transformative character of the Indian Constitution (IV).

I do not here intend to join the theoretical debate on horizontality in constitutionalinterpretation, or to examine the various modes in which horizontality operates.10 Thegoal of this article is to excavate the Indian Constitution’s unique approach towardsthe problem of horizontal discrimination (which has received next to no attention incomparative constitutional literature), and to justify it within the context of itstransformative purpose and values.11

i. restrictive covenants in comparativeconstitutional law

Housing discrimination is often carried out through “exclusionary covenants”, whichrestrict the sale, transfer, or occupation of real property on the bases of race, caste,religion, ethnicity, sex, nationality, or other such grounds that are prima faciediscriminatory.12 Exclusionary covenants present a troublesome legal problem,because they fall at the intersection of the private right of contract (which capitalistsocieties and liberal constitutions consider significant) and the pernicious social evil ofdiscrimination. Often, the groups at the receiving end of the exclusionary covenanthave, until recently, been formally treated as second-class citizens in law and/or fact,and only lately been legally emancipated.13 Exclusionary covenants then become asubstitute for official state-perpetrated discrimination, and other direct forms ofsuppression that are no longer permitted by law.

10. For a guide to the debate, see Andras SAJO and Renata UITZ, eds, The Constitution in Private Relations:Expanding Constitutionalism (The Hague: Eleven International Publishing, 2005).

11. For a recent, comparative study of transformative constitutionalism, see Oscar VILHENA, UpendraBAXI, and Frans VILJOEN, eds, Transformative Constitutionalism: Comparing the Apex Courts ofBrazil, India and South Africa (Pretoria: Pretoria University Law Press, 2013).

12. See generally Richard RW BROOKS and Carol M ROSE, Saving the Neighbourhood: RaciallyRestrictive Covenants, Law, and Social Norms (Cambridge: Harvard University Press, 2013).

13. Cases dealing with restrictive covenants, as we shall see below, have involved blacks in the United Statesand South Africa, and Jews in Canada and the United Kingdom.

horizontal discrimination and article 15(2) of the indian constitution 89





A survey of comparative constitutional jurisprudence (drawn from jurisdictions thatbroadly respect the freedom of contract, while also enshrining a constitutional guaranteeof non-discrimination) reveals that courts have been acutely aware of this problem, andhave devised creative solutions. Arranged along a spectrum of horizontality between oneend where the sanctity of contract is given great deference, to the other, where theconstitutional value of non-discrimination is accorded priority, three distinct solutionsemerge. They are: non-enforcement; invalidation on the contractual grounds ofvagueness and public policy; and invalidation on the ground of public policy as drawnfrom the Constitutional guarantee of non-discrimination. These solutions track eachjurisdiction’s differential understanding of the relationship between private actors,private law, and the Constitution, which in turn is often drawn from specific textualprovisions.14 While it is beyond the scope of this article to locate their approach tohousing discrimination within these broader jurisdiction-specific philosophies ofhorizontality,15 let us nonetheless consider the specific findings that these Courts havereturned when cases of housing discrimination have been before them.

A. Non-Enforcement

Shelley v Kraemer16 is an American Supreme Court decision concerning a covenantthat prohibited certain property from being “occupied by any person not of theCaucasian race”, and signalled an express intent to exclude “people of the Negro orMongolian race”. Notwithstanding this, a parcel of land was sold to the Shelleys, thepetitioners, who were black. The respondents (parties to the original restrictivecovenant) invoked the restrictive covenant to argue that this contract was void. Thepetitioners argued, on the other hand, that the covenant violated their FourteenthAmendment constitutional right to the equal protection of laws.17

At the outset, the Court clarified that “the Fourteenth Amendment erects no shieldagainst merely private conduct, however discriminatory or wrongful.”18

Consequently, it refused to invalidate the covenant. Nonetheless, here it was theCourt, one wing of the State, that was being asked to enforce the terms of theexclusionary covenant.19 As the Court observed, because:

the owners of the properties were willing sellers; and contracts of sale were accordinglyconsummated … it [was] clear that but for the active intervention of the state courts,supported by the full panoply of state power, petitioners would have been free to occupythe properties in question without restraint.20

14. Stephen GARDBAUM, “The “Horizontal Effect” of Constitutional Rights” (2003) 102(3) TheMichiganLaw Review 387 at 417.

15. See e.g. Stephen GARDBAUM, “Where the (State) Action Is” (2006) 4(4) International Journal ofConstitutional Law 760.

16. Shelley v Kraemer 334 US 1 (1948).17. US Constitution, amend XIV.18. Shelley v Kraemer, supra note 16 at 13.19. Under theUS Constitution’s Supremacy Clause, the Constitution binds State courts.US Constitution, art

VI S 1, cl 2.20. Shelley v Kraemer, supra note 16 at 19.






Consequently, this was a clear case of state action, and the Court was able to findthat judicial enforcement of the exclusionary covenant would violate the constitutionalrequirement of equal protection of laws. The covenant was held to be unenforceable.

Shelley has been criticized by commentators on the ground that it invalidated mereState acquiescence in a voluntary, private system.21 Laurence Tribe, however, providesan alternative, narrower reading. He argues that Shelley can be distinguished fromordinary cases of State acquiescence, such as the judicial enforcement of facially neutraltrespass laws to allow a bigoted homeowner from excluding only blacks from hisproperty. In Shelley, on the other hand, the exclusionary covenant created an exceptionto the general property law principle of no restraints upon alienability, an exceptionthat was founded in racial discrimination.22 Consequently, Shelley was not a case ofthe State facilitating permissible private discriminatory conduct, but an instance ofactive State discrimination. This distinction, as we shall subsequently see, is crucial inassessing the Indian position on restrictive covenanting.

B. Contractual Solutions – Vagueness and Public Policy

In Re Drummond Wren, a Canadian case, a restrictive covenant prohibited land frombeing sold to “Jews or persons of objectionable nationality.”23 It was argued before theOntario High Court that this exclusionary covenant was void as it was in violation ofpublic policy, a common law exception to the freedom of contract. In order todetermine the content of public policy, Justice Mackay went into internationalinstruments like the San Francisco Charter (to which Canada was a signatory), theAtlantic Charter, and local legislation such as The Racial Discrimination Act and theInsurance Act, all of which condemned discrimination, both public and private.Consequently, he held that:

nothing could be more calculated to create or deepen divisions between existing religiousand ethnic groups … than the sanction of a method of land transfer which would permitthe segregation and confinement of particular groups to particular business or residentialareas.24

Thus, the crucial point was that the exclusion of certain groups from geographicalareas would, in a stratified society, invariably mean their exclusion from economic andsocial life. Ghettoization could not but lead to discrimination and deepening inequality,both of which were contrary to public policy. Therefore, Justice Mackay held thecovenant void. He also held it void on more familiar common law grounds, forrestraining the freedom of alienation,25 as well as being impermissibly vague anduncertain.26

21. See e.g. Duncan KENNEDY, “The Stages of Decline of the Public/Private Distinction” (1982) 130University of Pennsylvania Law Review 1349 at 1352.

22. Laurence TRIBE, Constitutional Choices (Cambridge: Harvard University Press, 1985) at 259-260.23. Re Drummond Wren [1945] OR 778 (Ont HC).24. Ibid at para 20.25. Ibid at para 30.26. Ibid at para 31.






It was this last, more conservative argument, that was picked up by the CanadianSupreme Court six years later in Noble v Alley.27 At issue was an exclusionarycovenant that prohibited the sale of land to “any person of the Jewish, Hebrew,Semitic, Negro or coloured race or blood.” The majority held the covenant void. Threejudges specifically held it void for uncertainty, holding that “it is impossible to set suchlimits to the lines of race or blood as would enable a court to say in all cases whether aproposed purchaser is or is not within the ban.”28

C. Constitutional Public Policy

Lastly, consider the 2010 South African case of The Curators v University ofKwa-Zulu Natal.29 At issue was a will creating a charitable trust, which was to beadministered solely for the benefit of white women seeking a tertiary education.The will was defended on the ground that the freedom of testation – as an aspect of thefreedom of property – was a fundamental right guaranteed by Section 25 of theConstitution of the Republic of South Africa. Both the High Court and the SupremeCourt of Appeal rejected this argument, and invalidated the offending provision. In itsdecision, the Supreme Court of appeal referred to the equality provisions in the SouthAfrican Constitution,30 and the Preamble of the 2000 Promotion of Equality Act,which called for “the eradication of social and economic inequalities, especially thosethat are systemic in nature, which were generated in our history by colonialism,apartheid and patriarchy.”31 That Act, inter alia, prohibited racial discrimination ineducational institutions, leading the Court to observe that the principle of equalityobtained even in person-to-person relations.

The Court then held – in language reminiscent of German Constitutional doctrine –that “public policy ‘is now rooted in our Constitution and the fundamental values itenshrines, thus establishing an objective normative value system ….’”.32 In otherwords, a Constitution not only lists out a set of rights and corresponding Stateobligations, but also expresses an objective order of values (e.g., of dignity, equality,etc.) that may be invoked not only against State action, but also have a “radiatingeffect”, serving as background interpretive principles for adjudicating private lawdisputes.33 In the famous Luth case, the German Constitutional Court had held: “everyprovision of private law must be compatible with [the Basic Law’s] system of values,and every such provision must be interpreted in its spirit.”34

The South African Court directly linked public policy with the objective order ofvalues embodied within its Constitution, observing that “[i]n considering questions of

27. Noble v Alley [1951] SCR 64.28. Ibid at 70, following Clayton v Ramsden [1943] 1 All ER 16.29. Curators v The University of Kwa-Zulu Natal [2011] 1 B Const LR 40 (SCA) [Curators].30. Ibid at para 35.31. Ibid at para 36.32. Ibid at para 38 (quoting Napier v Barkhuizen [2006] 4 S Afr LR 1 (SCA), para 7 [Napier]).33. See Ralf BRINKTINE, “The Horizontal Effect of Human Rights in German Constitutional Law” (2001)

European Human Rights Law Review 421.34. BVerfGE 7 198.






public policy… the Court must find guidance in ‘the founding constitutional values ofhuman dignity, the achievement of equality and the advancement of human rights andfreedoms, non-racialism and non-sexism’.”35 These public policy concerns, groundedin constitutional values, overrode the freedom of testation, and did not unjustifiablydeprive the individual of his property.

Let us sum up. Exclusionary covenants are private contractual acts. Nonetheless, forreasons explained above, there is a strong social interest in preventing them when theyare used to discriminate against historically marginalized and subordinated groups.Because of the respect for private contracts, and a general hesitation to applyfundamental rights horizontally against individuals, Courts in various jurisdictionshave not directly held them constitutionally invalid, but have searched for otherremedies. These include judicial non-enforcement, weak contractual remedies such asvagueness, and stronger contractual remedies such as voidness for public policy, wherepublic policy may be dawn from constitutional values. Thus, the Constitution is notinvoked to invalidate private contractual acts, but is invoked indirectly to interpretprivate law in a manner that achieves the same result.

ii. zoroastrian cooperative and its discontentsThe template of remedies discussed above, which are admittedly grounded in eachjurisdiction’s constitutional text and doctrine, finds parallels in various aspects ofIndian jurisprudence. The fundamental rights chapter (subject to a few specificexceptions) is vertically applicable against the State, narrowly defined. But akin toShelley (and going far beyond), the Indian Supreme Court has found State action to beimplicated in the State’s failure to protect the rights to equality and personal liberty bypassing meaningful legislation to deal with sexual harassment in private workplaces.36

Akin to Canada, it has expanded equity-based public policy exceptions to the law ofcontract.37 And akin to South Africa and Germany, it has interpreted and modifiedcommon law to bring it in consonance with constitutional values, by reading the NewYork Times v Sullivan standard into Indian defamation law.38 Consequently, whendealing with horizontal discrimination and restrictive covenants, Indian constitutionaljurisprudence would allow the Court to place itself on any of the points of the spectrumdiscussed above.

With this in mind, let us now turn to the locus classicus in India, ZoroastrianCooperative v District Registrar39, a 2005, 2-Judge decision of the Supreme Court. Thefacts of this case closely resemble Shelley v Kraemer. The Zoroastrian CooperativeHousing Society was a registered society with its own bye-laws, under its parentlegislation, the Bombay Cooperative Societies Act. According to bye-law

35. Curators, supra note 29 at para 38(quoting Napier, supra note 32, para 7).36. Vishaka v State of Rajasthan JT 1997 (7) SC 384.37. See infra s II.38. R Rajagopal v State of Tamil Nadu (1994) 6 SCC 632.39. Zoroastrian Cooperative Housing Society Limited v District Registrar Cooperative Societies (Urban)

(2005) 5 SCC 632 [Zoroastrian Cooperative].






No 7 read with No 21, only Parsis (adherents of Zoroastrianism) could becomemembers of the Society. Since housing shares could be transferred only to members,effectively only Parsis could buy plots under the aegis of the Cooperative Society.Nonetheless, Respondent No 2 (a member) entered into negotiations with RespondentNo 3, a (non-Parsi) builders’ association, to sell them its property. After a series ofdecisions in the Tribunals, a High Court single bench and a High Court division bench,all essentially holding that the bye-laws were invalid as a restriction on alienation ofproperty (an argument used, as we have seen, by the Canadian courts), the matter camebefore the Supreme Court. Note that the decisions of the lower courts reflect Tribe’sunderstanding of Shelley: this was not merely State facilitation of a privatearrangement, but an active departure from the general principle against restrictionson alienability in favour of constitutionally impermissible, religion-baseddiscrimination. As we shall see, however, this distinction was (unfortunately) lostupon the Court.

The Cooperative Society argued that their private covenant was authorized by thebye-laws of the Cooperative Societies Act, which in turn did not infringe the parentstatute. The Constitution had no role to play in adjudicating upon such privateconduct. In fact, the Society actually invoked the Constitution to support its conduct. Itargued that under Article 19(1)(c)40 – which guarantees to all citizens the freedom ofassociation – Parsis’ right to association could not be infringed by imposing upon themmembers they did not wish to accept. It also relied upon Article 29, which guaranteedminorities the right to preserve their own culture.41 On the other hand, theRespondents raised a familiar argument: this kind of restrictive covenant was invalidbecause it violated public policy, as drawn from various constitutional provisions (inparticular, Article 15 and other non-discrimination clauses).

The Court embarked upon an elaborate history of cooperative society legislation inIndia, finding that “running right through these enactments [is the] the concept ofrestricted membership in a co-operative society.”42 The reason for this, the Courtfound, was that as far as a housing society is concerned, “there should be a bond ofcommon habits and common usage among the members … in India, this bond wasmost frequently found in a community or caste or groups like cultivators of avillage.”43

This reasoning is problematic, because one of the whole purposes of theConstitution, as reflected in Article 15(1)’s non-discrimination clause, was to ensurethat the invidious modes of identification such as caste,44 responsible for some of theworst forms of discrimination in Indian history, were to be made legally irrelevant as

40. Constitution of India 1949, art 19(1)(c).41. Ibid, art 29.42. Zoroastrian Cooperative, supra note 39 at para 9.43. Ibid at para 10.44. Article 15(1) of the Constitution prohibits the State from discriminating against citizens on grounds of,

inter alia, caste. The framers’ preoccupation with caste is reflected in other parts of the Constitution aswell. Article 17 prohibits “untouchability”, the most invidious avatar of caste-based discrimination.Article 25(2)(b) carves out an exception to the principle of religious freedom by allowing the State to makelaws that compel Hindu temples to admit entry to all “sections” of Hindus.






far as possible. In selectively referring to caste as a mode of creating harmoniousinternal bonds, the Court, I suggest, erred. The error was then compounded when theCourt examined the public policy argument, and unlike the decisions of otherjurisdictions, rejected it in the following terms:

The concept of public policy in the context of the Cooperative Societies Act has to belooked for under the four corners of that Act and in the absence of any prohibitioncontained therein against the forming of a society for persons of Parsi origin, it could notbe held that the confining of membership as was done by bye-law No. 7, was opposed topublic policy.45

This reasoning, however, in unconvincing. Following established principles ofcommon law, the Indian Contract Act, under Section 23, has a public policyexception46 that can be invoked to invalidate contracts. Courts have utilized this tohold void, for example, marriage brokerage contracts47 and letting a property for sexwork48 – neither of which are found within the “four corners” of the Contract Act.In Delhi Transport Corporation v DTC Mazdoor Congress, the Supreme Court hadobserved:

in the absence of specific head of public policy which covers a case, then the court must inconsonance with public conscience and in keeping with public good and public interest…declare such practice or rules that are derogatory to the constitution to be opposed topublic policy.49

This makes perfect sense, since the whole point of a public policy clause is to serve asan exception to the enforcement of statutory rules. To look for public policy within thestatute whose provisions are impugned is viciously circular. Matters, admittedly,would have been different if there had been an express statutory provision, designed tocarve out an exception to the operation of public policy. TheCooperative Societies Act,however, did no such thing. Consequently, the Court was incorrect to equate statutorypolicy (the policy embodied in the statute) with public policy (a ground for invalidatingcontracts).

The Court then responded to the constitutional challenge on the ground of non-discrimination, holding that the Society’s bye-laws were in the nature of the articles ofassociation of a company – not, that is, like a statute, but only “binding between thepersons affected by them.”50 In other words, rejecting the radiation approach ofindirect horizontality, followed in Germany and South Africa, and in its own cases ondefamation law, the Court held that a private, contractual agreement is not subject togeneral fundamental rights scrutiny, but only under the parent legislation (if it was a

45. Zoroastrian Cooperative, supra note 39 at para 13.46. Indian Contract Act 1872, s 23.47. See the observations in Sargunam Ammal v Jayarama Padayachi (1994) 1 LW 139, following

Gobindaswami Dasi v Radha Ballabha Dasi (1910) 15 CMN 205.48. Held as early as Bani Muncharam v Regina Stanger ILR 32 Bom 581.49. Delhi Transport Corporation v DTC Mazdoor Congress AIR 1991 SC 101.50. Ibid at para 15.






contract, it would be the Indian Contract Act; here, it would be the relevantCooperative Societies Act). The Court went on to make the contract analogy evenclearer, by holding that the fundamental rights chapter did not in any way interferewith citizens’ rights to enter into contracts. Responding to the contention that theConstitution’s guarantee of non-discrimination should be held to prohibit certain kindsof contracts, which directly discriminated on proscribed ground the Court’s answerwas somewhat elusive:

Running through the Cooperative Societies Act, is the theory of area of operation. Thatmeans that membership could be denied to a citizen of this Country who is located outsidethe area of operation of a society.51

This, of course, in its own right, makes perfect sense, since limiting membership byarea does not discriminate on any prohibited head, and is also, not coincidentally,perfectly in consonance with the point of housing societies. That logic, however, saysnothing about restrictive covenanting based on constitutionally prohibited groundssuch as sex or religion. This also explains why the Court’s numerous examples of otherCooperative societies – of agricultural workers, labourers, and even vegetarians52– areirrelevant, because there again, there is no discrimination on the basis of a prohibitedcategory.

On these grounds, then, the Court refused to find the agreement void; but then, itwent even further, holding that:

It is also not open to the authorities under the Act to relieve [the contractual party] of hisobligations in the guise of entering a finding that discrimination on the basis of the religionor sex is taboo under the Constitution in the context of Part III thereof.53

In this, the Court went even beyond the weak Shelley v Kraemer doctrine in not justrefusing to invalidate the agreement, but even requiring State enforcement of it – andheld a Part III challenge to the contrary irrelevant. This is surely incorrect, because evenif it is argued that the Court is not the State for the purposes of Part III, statutoryauthorities most definitely are. Keeping in mind Tribe’s critique of Shelley, it is at leastarguable that in requiring the State, then, to directly enforce a covenant thatdiscriminates on the basis of a prohibited Article 15 category, the Court effectivelycompelled it to perform an unconstitutional action.

In sum, therefore, I suggest that the core reasoning in Zoroastrian Cooperative isflawed on two grounds: the Court was incorrect in conflating the validity of therestrictive covenant with its enforcement; and it was incorrect in conflating publicpolicy with statutory policy.

Consider, however, the Court’s ancillary invocation of Article 19(1)(c), whichguarantees the freedom of association, as an independent constitutional reason tosupport the Society’s claim. As we have seen above, part of the Court’s public policy

51. Ibid at para 19.52. Ibid at para 33.53. Ibid at para 29.






arguments, indeed, appear to turn upon the unconstitutionality of requiring persons to“associate” with others that they do not want to associate with, which – according tothe Court – would have been the outcome had the exclusionary covenant been leftunenforced.

There is, however, a problem with this argument. The statutory right to contract –which is what the bye-laws of the Cooperative Societies Act authorized – is not thesame as the constitutional freedom of association. This is self-evident, because theIndian Contract Act places numerous restrictions upon the freedom to contract that gobeyond the permissible limits upon the constitutional freedom to associate underArticle 19(4).54More importantly, a quick glance at the Constituent Assembly Debatesreveals, unsurprisingly, that the freedom of association was considered to be anessential aspect of personal civil liberty, akin to the freedom of speech and the freedomof movement, contractual rights being nowhere mentioned.55Historically, the freedomof association has been about protecting the rights of labour unions, religiousminorities, and other unpopular groups to organize and defend their rights or theirways of life, as the case may be.56 The important Indian cases have also understood thefreedom of association to be about such purposes.57

This confusion went to the heart of the Court’s judgment, when it observed:

An aspirant to membership in a co-operative society, is at arms length with the othermembers of the society with whom he enters into the compact or in which he joins, havingexpressed his willingness to subscribe to the aims and objects of that society. In the contextof Section 23 of the Contract Act, something more than possible or plausible argumentbased on the constitutional scheme is necessary to nullify an agreement voluntarily enteredinto by a person.58

The reasoning is flawed because insofar as the Court speaks about arm’s lengthtransactions and holds membership in a Cooperative Society akin to a contract,Article 19(1)(c)’s constitutional freedom of association is not in play. But once theArticle 19(1)(c) argument fails, we fall back upon the original, flawed statutory-policy-equates-to-public-policy argument. We are therefore faced with the followingsituation: to the extent that Zoroastrian Cooperative is based on principles of contractlaw, the two major bases for the decision – public policy and freedom of association –

are incorrect. The case, therefore, can be saved only by arguing that it is not,after all, about contract law – and therefore, crucially, is not precedent for theunconstitutionality of unenforceability of exclusionary/restrictive covenants generally– but about something else that elevates it to the level of the constitutional principle ofthe freedom of association. What might that be?

54. These limits are restricted to the sovereignty and integrity of India, public order, and morality.Constitution of India 1949, art 19(4).

55. See e.g. Parliament of India, The Constituent Assembly Debates – Vol II (22 January 1947), online:Parliament of India <http://parliamentofindia.nic.in/ls/debates/vol2p3.htm>.

56. See e.g. NAACP v Patterson 357 US 449 (1958).57. See e.g. State of Madras v VG Row AIR 1952 SC 196.58. Zoroastrian Cooperative, supra note 39 at para 29.



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I believe that the strongest argument in favour of the covenant is grounded in Article29 of the Constitution, which the Court incidentally alluded to at the very end of itsjudgment, when it observed:

it is open to [a] community to try to preserve its culture and way of life and in that process,to work for the advancement of members of that community by enabling them to acquiremembership in a society and allotment of lands or buildings.59

Article 29 of the Constitution guarantees the rights of “any section of citizens …having a distinct language, script or culture of its own … to conserve [it].”60 Thisprovision, I would argue, helps us to grasp the only possible justification forZoroastrian Cooperative. While explaining the purpose of the provision during theConstituent Assembly Debates, Ambedkar clarified that it was meant for the protectionof communities that were minorities in the “linguistic and cultural sense”.61

Ambedkar’s specific concern was to ensure that groups of people who migratedbetween provinces could:

keep their connections … if this protection was not given to them … and [if] the localLegislature were to deny them the opportunity of conserving their culture, it would be verydifficult for [them] to go back to their province and to get themselves assimilated to theoriginal population to which they belonged.62

At the heart of Ambedkar’s formulation, then, that as far as language and culturego, minorities should have the option of refusing to assimilate with the majority group.In independent India, the controversy around cultural and educational rights hasfocused upon the extent to which minorities may establish and control access to theirown educational institutions.63 In Zoroastrian Cooperative, the Supreme Court –

arguably – was extending that logic to argue that living together as an exclusive,geographically-bounded community might be another way of preserving the Parsis’language and culture. Such an argument is known to philosophical literature,64 and isnot unfamiliar within the Indian constitutional context: the Fifth and Sixth Schedulesto the Constitution, for instance, empower the State to prohibit the sale of certain triballand to non-tribals.65 In Samatha v State of Andhra Pradesh, the Supreme Court citedsociological studies to note the link between land and the preservation of culture,observing that “tribals had held large tracts of lands as masters and had their own richculture with economic status and cohesiveness as compact groups.”66

59. Zoroastrian Cooperative, supra note 39 at para 33.60. Constitution of India 1949, art 29.61. Parliament of India, Constituent Assembly Debates – Vol VII (8 December 1948), online: Parliament of

India <http://parliamentofindia.nic.in/ls/debates/vol7p22.htm>.62. Ibid.63. See e.g. Ahmedabad St Xavier’s College v State of Gujarat AIR 1974 SC 1389.64. See Will KYMLICKA, “The Rights of Minority Cultures: Reply to Kukathas” (1992) 20(1) Political

Theory 140 at 140.65. Constitution of India 1949, Schedules V & VI.66. Samatha v State of Andhra Pradesh (1997) 8 SCC 191 at para 12.







However, if that was the underlying reasoning of the Court, then surely somethingmore was needed: in particular, evidence that central to the preservation of Parsiculture was a distinct way of life, that would be jeopardized by living in physicalproximity with non-Parsis. This, the Court made no attempt to establish.

However, even if the Court was justified in invoking Article 29 as the legitimatingprovision for the exclusionary covenant, then it is important to note that the sameconstitutional provision limits the nature of the covenants that can take its shelter.There are two essential requirements that must be fulfilled under Article 29. The firstrefers to whom it applies: a “section of citizens having a distinct language, script orculture of its own”. The second determines what it applies to: conservation of saidlanguage, script, or culture. Conceivably, the Parsi community, as a besieged minority,might rely upon the combination of Articles 19(1)(c) and 29, which we discussedabove, to argue that living together in groups is a crucial way in which it can preserveits distinct culture. The same argument, clearly, will not apply to exclusionarycovenants where these specific circumstances are not present.

The claim of the exclusionary covenant in Zoroastrian Cooperative to not justvalidity (contra legitimate public policy concerns), but actual enforcement, must surelyrest upon this basic idea: insofar as a community believes that the survival of its own setof cultural values qua community depends on its members living together exclusivelywith each other (and not upon a politically illiberal conception of race/cultural/religious superiority, the eradication of which is the whole point of Article 15), theprinciples of Article 19(1)(c) and Article 29 are attracted, and the contrary non-discrimination principle of Article 15 is not. In such cases, the exclusionary covenant isboth valid, and may be judicially enforced. Of course, the Court must look intowhether the claim in question is actually justified as a matter of fact – and inZoroastrian Cooperative, as I have attempted to argue, it did not do so.67

iii. ima and article 15(2) of the indian constitutionI will now argue that in general cases of horizontal discrimination, the IndianConstitution contains the tools to go one step beyond the solutions advanced in otherjurisdictions. Article 15(2) of the Constitution, on my proposed reading, will provide ahorizontally applicable constitutional remedy for holding racially/religiously restrictivecovenants void. Unlike the jurisdictions we have studied, therefore, the IndianConstitution can be brought to bear directly upon the issue of horizontaldiscrimination, in the sense that it does not just apply to private law (such as the lawof contract) that might be at issue in a dispute between two non-State actors, but itapplies also to private action.

67. Admittedly, by virtue of the 97th Amendment to the Constitution, passed in 2012, the term “cooperativesocieties” has been added to Article 19(1)(c) of the Constitution. This does amount to a post factovalidation of the Court’s holding that membership in a Cooperative Society is protected by Article 19(1)(c).It does not, however, affect my argument: a fundamental right to the freedom to form cooperative societiesdoes not necessarily imply that every act carried out by a Cooperative Society – including acts that excludepersons from arm’s length economic transactions on the basis of prohibited markers under Article 15(1)(as was the case in Zoroastrian Cooperative) – are ipso facto valid.






Article 15(2) states, in relevant part:

No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them,be subject to any disability, liability, restriction or condition with regard to … access toshops, public restaurants, hotels and palaces of public entertainment ….68

In IMA v Union of India,69 decided by the Supreme Court in 2011, the question waswhether a private, non-minority higher educational institution that admitted studentsonly on the basis of their scores in an entrance test violated Article 15(2). The claimwasbased on the disparate impact of test-based admissions programs upon educationallyunderprivileged castes. But before the Court could even reach that question, it had todecide whether, on its terms, Article 15(2) was attracted in the first place. How dideducational institutions fit within “shops, public restaurants, hotels and places ofpublic entertainment?”

The Court held that Article 15(2) was indeed applicable, because educationalinstitutions were covered by the term “shops”. It quoted – and endorsed –

Dr Ambedkar’s speech in the Constituent Assembly Debates, where theConstitution’s principal drafter had observed:

To define the word ‘shop’ in the most generic term one can think of is to state that ‘shop’ isa place where the owner is prepared to offer his service to anybody who is prepared to gothere seeking his service …. I should like to point out therefore that the word ‘shop’ usedhere is not used in the limited sense of permitting entry. It is used in the larger sense ofrequiring the services if the terms of service are agreed to.70

In other words, the Court rejected the standard uses of the word “shop” – that is, astore, “a building or room where goods are stored”, “a building stockedwith merchandise for sale”, “a small retail establishment or a department ina large one offering a specified line of goods or services”71 – in favour of anextremely abstract, rarefied, “generic” usage, to shoehorn educational institutions intothe definition.

What is this “generic” meaning, that allows a school to count as a shop? There canbe only one answer: a shop, as Ambedkar understood it in 1949, and as the SupremeCourt interpreted it in 2011, is any place where an abstract seller x offers an abstractthing y to an abstract buyer z. Or, in other words, a “shop” is merely the concreteexpression of the idea of the impersonal, abstract market of the modern liberal-capitalist economy. This is the only way that the Court succeeds in bringingeducational institutions within the ambit of 15(2). But note that, once the Court doesso, obviously, the reach of “shop” is not limited to educational institutions. If “shop”merely embodies the abstract market, then the reach of 15(2) extends to privateeconomic market transactions generally, and not just the business of education. And

68. Constitution of India 1949 art 15(2).69. Indian Medical Association v Union of India (2011) 7 SCC 179.70. Ibid at para 113.71. All these definitions may be found in theMerriam-Webster Dictionary, online:Merriam-Webster <http://

www.merriam-webster.com/dictionary/shop>.

100 as i an journal of comparat i ve law


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covenants for the lease of property are examples par excellence of such transactions.The logic of IMA v UoI, therefore, inescapably brings such covenants under Article15(2), which applies horizontally. If such these covenants discriminate against personson prohibited grounds – race, religion, sex, etc. – they are unconstitutional.

Note that this conclusion is not as radical as it sounds. While we have argued for abroad reading of the word “shops”, clearly, its scope is not limitless. The word itself,which indicates a commercial relationship, as well as Ambedkar’s focus on “terms ofservice”, suggests that Article 15(2) is limited to economic transactions (which,in any event, in accordance with classical economic theory from the time ofAdam Smith, are supposed to take place at arm’s length). It would not apply tonon-economic, associative relationships. For instance, if I wanted to sell or supplycertain goods or services on the market, Article 15(2) would apply to prohibit me fromdiscriminating on the basis of the proscribed markers; but if I wanted to gift the samegoods or services to someone, it would not.72 Apart from the nature and history of theword “shops”, it must also be noted that a broader mandate for the intervention ofArticle 15(2) would also run up against Article 19(1)(c) of the Indian Constitution,which, as we have seen above, guarantees the freedom of association. Restricting thescope of 15(2) to commercial relationships is one way of harmoniously reading the twoprovisions.

Furthermore, there are good philosophical reasons for this: as TarunabhKhaitan has recently argued – and as cases from the United States and Canadademonstrate73 – the imperative of non-discrimination has to be balanced against thelegitimate right to autonomy in private relationships.74 According to Khaitan,therefore, it is only certain kinds of private relationships that discrimination lawshould reach (e.g., relationships of service providers and consumers, landlords andtenants, etc.). The criterion for determining this is the extent to which suchrelationships have a “public character”, as well as the extent to which they canpotentially affect peoples’ ability to lead a dignified life by cutting off access toimportant physical and social infrastructure.75 And, as we shall see in the next Section,the rationale for applying – and limiting – the scope of Article 15(2) to economictransactions of a certain type is grounded in some unique aspects of Indianconstitutional and political history that speak to precisely this concern.

iv. “shops”, horizontal discrimination, and thetransformative constitution

Is there any warrant for the Court’s reading of Article 15(2)? I will try to argue thatthere is. To start with, let us consider the most basic objection: the constitutional text. Ifthe framers wanted to apply Article 15(2) to all market transactions, why did they not

72. I thank Krishnaprasad KV for pushing me to ensure greater clarity on this point.73. Boy Scouts of America v Dale 530 US 640 (2000);Gould v Yukon Order of Pioneers [1996] 1 SCR 571.74. See Tarunabh KHAITAN, A Theory of Discrimination Law (Oxford: Oxford University Press, 2015).75. Ibid at 203-209.






simply say so?76 Why did they use concrete terms – and not just one concrete term, butshops, restaurants, hotels – to express the abstract concept of the market? To answerthat question, let us examine the history and circumstances under which this provisionwas came into being.

The meaning of “shops” was debated in the Constituent Assembly on the 29th ofNovember, 1948.77 Shri Nagappa expressed a wish that the clause could have been made“more expansive and explanatory”, and by way of clarification, asked specificallywhether “shops” included not just places where goodswere bought, but also places whereservices were contracted for. “When I go to a barber’s shop or a shaving saloon,” heobserved, “I do not buy anything concrete, but I purchase labour.”78 The debate thenturned to a host of private, discriminatory practices, the amelioration of which was theobjective of Article 15(2), as a whole (not simply as the sum of its isolated terms). Indeed,Shibban Lal Saksena objected to the provision precisely on the basis of its far-reachingcharacter, one that would compel Hindus to go against their religious (as well as casteist)practices involving food. In his words:

I may also point out the revolutionary character of this article. I know that there arehundreds of Hindu shops where food is served to Hindus only. Food is a matter whereHindus have got special habits and they generally will not allow anybody to enter the placewhere they eat food. I think this is a very serious thing because henceforth it will be afundamental right of every citizen to enter anyHinduHotel. Anybody can now claim entryto any place where food is sold. I therefore think that we must prepare the ground to giveeffect to this change which is of a far-reaching character.79

76. Constitutional interpretation often requires attempting to decipher whether a generally worded termcovers a concrete situation (e.g., does the “equal protection clause” of the American Constitutionmandate desegregation?), and – as in this case – vice versa. An interesting way of understanding suchsituations is provided by Professor Jed Rubenfeld in his book, Revolution by Judiciary. Rubenfeldproposes the following hypothetical: Odette is married to Swann, and cheats on him with Duke.Ashamed, she vows that she will never deceive Swann again. This vow – or “commitment” – is generallyworded. Rubenfeld then argues that the context in which this commitment was made implies that not-sleeping-with-someone-else is the paradigmatic case of deception – i.e., no interpretation of “deception”can fail to take into account the central act that led Odette to make this vow. This makes sense, becauseultimately, what Odette agonized about was not sleeping with Duke in itself, but that in doing so, shebetrayed Swann’s trust. This explains why she framed her vow in general terms. Jed RUBENFELD,Revolution by Judiciary (Cambridge: Harvard University Press) at 104 – 121.Let us now reverse the hypothetical. Ashamed andmortified by her act, Odette is asked by a friend, “whatdid you do last night?”, to which she replies: “I slept with Duke. I’m utterly ashamed. I vow I’ll never dothat again.” Now, a few months later, Swann is away, and at a house-warming, Odette finds herselfattracted toMarcel. She says to herself, “Well, all I did was vow never to sleep with Duke again. But this isMarcel. So my vow remains unbroken.” Nobody will accept this reasoning. This is because if Odette’svow is to make any sense, it must be understood as expressing some kind of principle. Odette made herpromise because she saw something wrong in what she had done, and the wrongness of the act – sleepingwith Duke – lay not in it being Duke, or a man with blue eyes, but her breach of Swann’s trust. Thus,although her vow was framed in specific language, as an immediate response to a situation, its reach wasnot so. Again, the core idea is that we take Odette’s vow to be grounded in reason – and embodying aprinciple. And to understand what the principle is, we must study the context and circumstances in whichher vow, or commitment, was made. This shows that in certain situations, history tells us that a principleframed in concrete terms nonetheless has broader applications that go beyond the specific context inwhich it was framed.

77. Parliament of India,Constituent Assembly Debates –Vol VII (29November 1948), online: Parliament ofIndia <http://parliamentofindia.nic.in/ls/debates/vol7p15.htm>.

78. Ibid.79. Ibid [emphasis added].







Ambedkar then answered Sri Nagappa in the quotation that the Supreme Court inIMA v UoI extracted – about “shop” being used in its “generic” sense. Specifically –

and this the Supreme Court did not extract – Ambedkar was asked whether “shop”included a doctor and a lawyer’s chambers. His answer:

it will include anybodywho offers his sevices… the word ‘shop’ used here is not used in thelimited sense of permitting entry. It is used in the larger sense of requiring the services if theterms of service are agreed to.80

The debate made it clear, therefore, that the word “shop” was not understood in itsnarrow, spatial sense, but in a broader sense of a place defined by an arm’s lengthtransaction on the basis of previously agreed terms and conditions. This is buttressed bythe fate of a proposed amendment by KT Shah. Shah wanted to replace the two sub-clauses of the horizontal non-discrimination provision with a single omnibus clause,focused on public spaces. His amendment sought to protect “places dedicated to the useof the general public”, such as theatres and cinemas, parks, gardens or museums, etc.81

Shah’s amendment was rejected, making it clear the article was not upon guaranteeingaccess to space, but ensuring that nobody was excluded from participation in the basiceconomic life of the community – a concept that, in outcomes, would often overlap witha spatial idea of the public, but was very different in its thrust and intent.

And lastly, when, on 22 November 1949, towards the very end of the draftingprocess, Ajit Prasad Jain discussed the provision, he did so by grounding it in a longhistory of horizontal, societal, and economic discrimination against women, scheduledcastes, untouchables, and other groups that had blighted Indian society.82 We can thussee that both the supporters and the opponents of what eventually became Article 15(2)were united in its understanding that the purpose of the provision – as expressedthrough its language – was to reverse this history, a history in which a part of societywas systematically excluded from the normal functioning of economic life. In thiscontext, IMA v UoI’s interpretation no longer sounds so untenable.

To understand what the framers of the Indian Constitution were getting at, let usdeepen our analysis further. As Mark Tushnet points out, the extent to whichhorizontality operates within any given jurisdiction depends upon the relative strengthof the norms supporting liberal autonomy on the one hand, and social democracy onthe other.83 I would like to argue that the interpretation the IMA Court placed uponArticle 15(2) was correct in the context of the social-democratic commitment of theIndian Constitution, which, not coincidentally, lists “fraternity” as one of the threeguiding values in its Preamble, along with liberty and equality.84 This commitment, inturn, is an instantiation of the uniquely transformative nature of the Constitution.

80. Ibid.81. Ibid.82. Parliament of India, Constituent Assembly Debates – Vol XI (22November 1949), online: Parliament of

India <http://parliamentofindia.nic.in/ls/debates/v11p8m.htm>.83. See Mark TUSHNET, “The Issue of State Action/Horizontal Effect in Comparative Constitutional Law”

(2003) 1(1) International Journal of Constitutional Law 79.84. Constitution of India 1949, Preamble.



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Let me, at this stage, introduce a terminological scheme.85 As Hannah Arendtrecognized long ago, constitutionalism and revolution sit in an uneasy tension witheach other.86 Constitutions, which are often framed at the culmination of a politicalrevolution, are designed as much to halt revolutionary change as to accelerate it; theyare as much about maintaining continuity or marking a return to the past as they areabout looking ahead to the future. In the Indian constitutional context, an example ofthe first kind is the separation between executive and judiciary. In Madras BarAssociation v Union of India,87 the Supreme Court invalidated the National TaxTribunals Act, holding that it did not provide sufficient guarantees of independence tothe tax tribunals that it created, and consequently violated the “Westminster model” ofgovernment.88 As the name suggests, the Westminster Model was an existinginstitutional arrangement that was simply carried over into the Indian Constitution,representing a colonial continuity rather than a rupture.

On the other hand, soon after independence, in Virendra v State of Uttar Pradesh,89

Justice Vivian Bose rejected as unconstitutional the invocation of the “Act of State”doctrine as a defence against arbitrary expropriation of property, observing that:

[with the framing of the Constitution] at one moment of time the new order was born withits new allegiance springing from the same source for all, grounded on the same basis: thesovereign will of the peoples of India with no class, no caste, no race, no creed, nodistinction, no reservation.90

As Bose J recognized, the republican-democratic framework of the Constitution,with its guarantee of individual rights enforceable against the State, was not simply therecognition of an existing institutional and substantive legal arrangement, but thecreation of a new one. This would necessitate not just different legal outcomes, but anentirely different approach to legal questions that involved the relationship between theState and the individual.

Let us call the first kind – i.e., constitutional provisions that recognize or entrench anexisting set of rights or institutional structures as “declaratory”, or “conservative”,and the second kind, which change them, as “transformative”. I now suggest thattransformative constitutional provisions can further be of two kinds: politicaltransformative provisions, such as those involved in Virendra v State of UP, whichare designed to alter only the existing legal and political landscape, and comprehensivetransformative provisions, that go beyond politics and law, and seek to transform thedeepest societal convictions about identity, personhood, and inter-personal relationswhich underlie and justify the law and political structures of a community. I use the

85. I develop this idea in much greater detail in Gautam BHATIA, “Comprehensive TransformativeAmendments” (2015) 13(1) Dartmouth Law Journal 1.

86. Hannah ARENDT, The Human Condition, Part II (Chicago: University of Chicago Press, 1985).87. Madras Bar Association v Union of India (2014) 10 SCC 1.88. Ibid at para 85.89. Virendra Singh v State of Uttar Pradesh [1955] 1 SCR 415.90. Ibid at para 43.






word “comprehensive” in its Rawlsian sense, referring to doctrines or world-views that“cover the major religious, philosophical and moral aspects of human life.”91

As has been argued elsewhere, an example of a comprehensive transformativeconstitutional provision is the Nineteenth Amendment to the US Constitution, whichgranted women the right to vote.92 TheNineteenth Amendmentwas transformative in thesense that it created a new right where none existed before. It was comprehensivelytransformative because the denial of the right to vote, based upon the legal fiction of virtualrepresentation and the common law of coverture, was ultimately founded upon aphilosophical world-view which held that men and women “naturally” belonged to“separate spheres” – the public and the private – and votingwas an exercise of citizenship inthe public sphere.93 The debates around the suffrage campaign reflect the fact that thecontest was not merely about a surface change to the scope of the right to vote, but a muchdeeper challenge to the separate spheres vision that formed the bedrock of the way thatsociety organized itself along gendered lines. The culmination of the suffrage campaign inthe passage of the Nineteenth Amendment, therefore, is the reason why that Amendmentshould be read as repudiating not simply the existing legal structure, but as signifying adeeper transformation, one that would subsequently invalidate all laws that distributedbenefits and burdens unequally on the basis of the separate spheres theory of society. Andthis, indeed, is the American SupremeCourt’s present approach to sex discrimination underthe US Constitution: the Supreme Court has struck down laws that endorse or entrenchstereotypical assumptions about men and women’s roles in society, thus according judicialimprimatur to the Amendment’s comprehensive transformative nature.94

I will now argue that the IMA Court’s reading of Article 15(2) was justified becauseArticle 15(2), like the Nineteenth Amendment of the American Constitution, wasmeant to be a comprehensive transformative provision. That the Constituent Assemblyunderstood it in this way is evident from the Debates cited above. To further place theDebates in their historical and philosophical context, I will sketch a brief outline of thehistory of the evolution of constitutional rights in Western liberal democracies, beforecontrasting that with the Indian experience. Needless to say, a full defence of the claimsI make would require a far lengthier and more detailed treatment than I can providehere. The following account, therefore, should be treated as a starting point for adeeper investigation into the relationship between bills of rights, their interpretation,and the varying political and historical contexts that birthed them.

Traditionally, civil liberties have been exercisable vertically – individuals against theState. The vertical nature of bills of rights –which arose with the American and FrenchRevolutions – goes hand-in-hand with a separation between State and market, andbetween the public and private spheres.95 Critical theorists argue that the State/marketand public/private distinction encoded into classical bills of rights reflects the fact that

91. John RAWLS, Political Liberalism (New York: Columbia University Press, 1993) at 65.92. Bhatia, supra note 85.93. See Reva SIEGEL, “She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the

Family” (2002) 115(4) Harvard Law Review 948.94. Frontiero v Richardson 411 US 677 (1973); US v Virginia 518 US 515 (1996).95. This schema was originally proposed by Habermas. See Nancy FRASER, “What’s Critical About Critical

Theory? The Case of Habermas and Gender” (1985) 35 New German Critique 97 at 112.






these revolutions were driven by a rising bourgeoisie class, and targeted at absolutistand centralized State power.96 Thus, by addressing bills of rights exclusively to stateaction, and by creating protected zones under the rubric of the “private sphere”, thoseliberal Constitutions ensured that all action within the protected private sphere wasdeemed off-limits, subject to no scrutiny, and beyond the field of politics. Naturally,this meant that inequalities of power, structural violence, and relationships ofdomination and subordination within the private sphere (which included the market)went untouched and unregulated.97

As a related – but distinct – point, it is also important to note that when bills of rightswere first conceptualized (in particular, in the aftermath of the American revolution),they were conceptualized in the context of a distinctly Western idea of sovereignty, ofThomas Hobbes and Jean Bodin: the idea that sovereignty was single, indivisible, andultimate, and resided at one place in the polity.98 For Hobbes and Bodin, sovereigntywas concentrated in the figure of the sovereign, but through the American and Frenchrevolutions, it came to be thought of as residing in the people. The basic idea of theinherent, unitary, and unified nature of sovereignty, though, remained intact. Thus,when the American Revolution culminated in a system of representative republicandemocracy, through which sovereign power was delegated by the people to theirelected representatives, it made sense to draft a bill of rights designed to check the State,because it was there where the locus of sovereign power (albeit delegated) resided.99

The work of post-colonial scholars informs us, however, that sovereignty in Indiawas always understood very differently: it was inherently decentralized and had itslocus at multiple points, especially in the economic sphere.100 In addition, as the worksof the subaltern historians have shown, unlike the impersonal, vertical market forces ofliberal capitalism that have characterized the West, forms of authority in themarketplace (even during the colonial period) continued to be horizontal, person-to-person, and tradition based, in continuance of the multiple, decentralized centres ofpower-and-sovereignty that had characterized the old Indian polity.101 Indeed, one ofthe objectives of the nationalist movement was precisely to replace this set of relationswith a liberal-capitalist order.102

96. See e.g. Seyla BENHABIB, Situating the Self: Gender, Community and Postmodernism in ContemporaryEthics (New York: Routledge, 1992).

97. And thus also, a central tenet of contemporary feminism has been a challenge to the very concept of“privacy”. Feminists have argued that privacy rights serve to mask and legitimize violence and oppressionwithin the family.

98. See e.g. Thomas HOBBES, Leviathan (1651), online: Gutenberg Project <http://www.gutenberg.org/files/3207/3207-h/3207-h.htm>; Jean BODIN, Six Books of the Commonwealth, trans by MJ TOOLEY(Oxford: Basil Blackwell, 1955), online: <http://www.constitution.org/bodin/bodin_.htm>. JacquesMARITAIN, “The Concept of Sovereignty” (1950) 44(2) The American Political Science Review 343 at345-346.

99. See e.g. Gordon WOOD, The Creation of the American Republic, 1776-1787 (Chapel Hill: University ofNorth Carolina Press, 1969).

100. Sudipta KAVIRAJ, Trajectories of the Indian State: Politics and Ideas (Ranikhet: Permanent Black,2010).

101. Ibid.102. Borrowing from Gramsci, Partha Chatterjee calls this a “passive revolution”. See e.g. Partha

CHATTERJEE, Nationalist Thought and the Colonial World (Minneapolis: University of MinnesotaPress, 1986).



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This understanding of authority as decentralized, horizontal, and consisting ofmultiple foci, was mirrored by the evolution of the concept of rights, which were neverunderstood exclusively as bulwarks against State power. For instance, as the historianTanika Sarkar argues, while examining the three great social reform movements of thenineteenth century that were aimed at women (i.e., the age of consent for sexualintercourse, widow remarriage, and outlawing the custom of sati), the vocabulary of awoman as a rights-bearing individual was first framed horizontally, in opposition tothe “community as a culture-bearing entity”103 (and not in opposition to the State).Similarly, even as the nationalist movement was articulating a set of vertical civil andpolitical rights against the colonial authority through a series of Constitutionalcharters,104 Ambedkar himself invoked the vocabulary of rights against the horizontalstructures of the caste system, which excludedDalits from the social and religious life ofthe community. In particular, he led movements to guarantee the right to take waterfrom public watering places (horizontal social exclusion), and the right to enter Hindutemples, on parity with other Hindus (horizontal religious exclusion).105 As we shallsee at the end of this Section, both these rights would ultimately be incorporated intothe Constitution.

What this admittedly sketchy outline tells us is that unlike the American and Frenchrevolutions, the Indian independence movement always had twin focal points –

political independence from an authoritarian colonial power (which explains thepredominance, in the fundamental rights chapter, of classic liberal civil and politicalrights against the State), as well as horizontal independence from exclusionary systemsof authority and control, manifested most clearly in various reform movements aimedat the emancipation of women and the eradication of the caste system.106 Thevocabulary of rights was central to both foci. Within this framework, the ConstituentAssembly Debates that I referred to above make it doubly clear that the IndianConstitution was transformative in two ways: it sought to transform not only (in part)the British colonial system (politically transformative), but also the underlyingpre-colonial relations based on caste, untouchability, and gender oppression(comprehensively transformative). And one of the characteristic features that itsought to address was, precisely, the horizontal exercise of power relations in anexclusionary manner, including in the sphere of economic transactions. Therefore – toreturn to Tushnet’s point – the very different Indian experience with political and civilrights movements leading up to, and influencing the framing of, the Constitutionindicates that there is enough warrant for the Court to strike the balance betweenautonomy and social democracy in a manner that is more skewed towards the latter,

103. Tanika SARKAR, “A Prehistory of Rights: The Age of Consent Debate in Colonial Bengal” (2000) 26(3)Feminist Studies 601 at 606. See also Tanika SARKAR, “Something Like Rights? Faith, Law andWidowImmolation Debates in Colonial Bengal” (2012) 49 Indian Economic and Social History Review 295.

104. “The Constitution of India Bill, 1895”, cf B Shiva RAO, The Framing of India’s Constitution: SelectDocuments, vol 1 (Delhi: Universal Law Publishing Co, 1967) at 5; “Congress Resolution on Self-Determination”, 1918, cf B Shiva Rao, ibid at 31; “The Nehru Report”, 1928, cf B Shiva Rao, ibid at 58.

105. Vidhu VERMA, “Colonialism and Liberation: Ambedkar’s Quest for Distributive Justice” (1999) 34(39)Economic and Political Weekly 2804 at 2806.

106. See e.g. Mrinalini SINHA, Spectres of Mother India: The Global Restructuring of an Empire (Durham:Duke University Press, 2006).






than it has been in other commonwealth Constitutions. This further buttresses thebroad reading that the IMA Court provided to Article 15(2).

Importantly, this understanding of the Constitution’s role is borne out by otherguarantees under Part III of the Constitution. These include horizontally applicableprovisions guaranteeing the abolition of untouchability107 (which was widely used as atool of private economic oppression) and of forced or bonded labour108 (anothereconomic weapon), as well as a provision overriding the right of religious freedom inorder to allow the State to make laws for the throwing open of Hindu religiousinstitutions to all classes of Hindus.109 In PUDR v Union of India,110 the SupremeCourt expanded the term “forced labour” under Article 23 to cover the non-paymentof the living wage,111 noting the inequalities of bargaining power betweenmanagement and workmen. In other words, the Court held that the market – itselfan aggregate of thousands of “voluntary” private relationships – could be coercive in amanner that could give rise to a constitutional claim against forced labour. Much likeIMA v Union of India, PUDR’s founding premise is a rejection of the market-Statedichotomy that has structured the system of constitutional rights in Western liberaldemocracies, according to which themarket, with its extant arrangement of wealth andpower, is a background condition under which rights are exercised against the State (orprivate actors), and not itself capable of facilitating or violating those rights. As arguedabove, the framers clearly understood that in India the market, and economic relations,were systematically used as a mechanism of domination and subordination.Consequently, Articles 15(2) and 23, as interpreted in IMA and PUDR, reflect thecommitment of the Constitution to transform an unjust society, in which horizontaldistributions of authority, extended into the marketplace, ensured that sections of thecommunity were excluded from equitable access to basic physical and socialinfrastructure.

Lastly, this commitment is further reflected by the other parts of Article 15(2) itself.In addition to shops, Article 15(2)(a) guarantees access to “public restaurants, hotelsand places of public entertainment.”112 Article 15(2)(b) does the same for “wells,tanks, bathing ghats, roads and places of public resort maintained wholly or partly outof State funds or dedicated to the use of the general public.”113 In the face of all this, itmakes perfect sense that the framers, through Article 15(2), which is also clearlytransformative, were attempting to do away with traditional discriminatory practicesthat pervaded the private economic realm. Their use of the word “shops” – andAmbedkar’s clarification of its meaning – was one way of doing so, and fulfilling thetransformative promise of India’s constitution.

107. Constitution of India 1949, art 17.108. Ibid, art 23.109. Ibid, art 25(2)(b).110. PUDR v Union of India AIR 1982 SC 1473.111. Ibid at para 20.112. Constitution of India 1949, art 15(2)(a).113. Ibid, art 15(2)(b).






v. conclusionLet us briefly sum up. Article 15(2)(a) contains an inbuilt framework broadly akin to acivil rights act, which prohibits discrimination even within the private economic realm,insofar as such discrimination operates to exclude persons from access to coreeconomic, social, and physical infrastructure. It makes the right to non-discriminationhorizontally enforceable. This interpretation turns upon a historically groundedreading of “shops”, which understands that word to be embodying the abstract marketof arm’s length, economic transactions. The specificity of the text of Article 15(2) is notan insurmountable bar against a broad reading of “shops”. The Constituent Assemblydebates support a broad reading. The structure of Part III supports it. And finally, theuniquely transformative nature of India’s constitution – with respect to a long historyof horizontal discrimination, fighting against which was one of the goals of the nationalmovement – justifies the use of horizontal constitutional rights against discriminatoryeconomic transactions in the private sphere. IMA v UoI’s interpretation, therefore, isfaithful to the structure and philosophy of India’s bill of rights. It ought to be upheld,and its reasoning taken to its logical conclusion.




